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The election of President Obama and antitrust enforcement

There can be no doubt that antitrust enforcement will be invigorated under the new administration. Traditionally, presidential candidates seldom spend a lot of time discussing their antitrust policies. President-elect Obama, however, made himself clear about antitrust enforcement while on the campaign trail.

In a statement by President-elect Obama to the American Antitrust Institute, Obama explained his belief that “Antitrust is the American way to make capitalism work for consumers…. Most fundamentally, it insists that customers—not government bureaucrats, and not monopoly CEOs—are the judges of what best serves their needs.” Obama further emphasized that “as president, I will direct my administration to reinvigorate antitrust enforcement. It will step up review of merger activity and take effective action to stop or restructure those mergers that are likely to harm consumer welfare, while quickly clearing those that do not.” Presidentelect Obama, in particular, pointed a finger at the huge numbers of health care and health insurance mergers over the past 10 years, noting that these had not made the industry more efficient but rather had resulted in insurance premiums skyrocketing. In other public statements during his campaign, President-elect Obama similarly targeted the telecommunications, media and pharmaceutical sectors as industries that require stricter antitrust scrutiny and more enforcement.

So, what can we expect over the next four years in the United States?

Eric Holder, Obama’s choice for Attorney General, has not expressed any antitrust positions. Obama next will appoint assistant attorneys general under Holder, including an assistant attorney general for the Antitrust Division. It is expected that this appointee will take a harder look at proposed mergers and dominant firm cases.

President-elect Obama will also appoint a new commissioner to the FTC and name a new chairman. Because the FTC is seen as currently promoting aggressive antitrust enforcement, it is unlikely that these appointees will deter the FTC from its current course of action, but instead will help bridge a growing rift between the current FTC and DOJ.

The Obama administration is likely to continue the current administration’s vigorous enforcement efforts against international cartels.

The Obama administration can be expected to target the health care and health insurance industries, including closer scrutiny of proposed mergers and dominant market shares in these industries. In fact, in an article published in the Wall Street Journal Dec. 17, 2008, FTC Commissioner Jon Leibowitz was quoted as saying that the FTC’s case against Ovation Pharmaceuticals (see in-depth discussion in the Antitrust Regulator, at p. 15), “is an example of how aggressive we are going to be on health care issues going forward.”

Additionally, the Obama administration will focus on agreements that retard the entry of generic pharmaceuticals into the market, though he intends to preserve the pharmaceutical companies’ incentives to continue to develop critical new drugs.

The Obama administration is expected to support open competition on the Internet and would seek to promote many providers of network services through network-neutrality. Accordingly, one would expect that the proposed telecommunications and media consolidations will have a harder time passing muster under the new administration.

Obviously, it will take a while for the effects of Obama’s policies to be felt. Nonetheless, in the face of what is sure to be much stricter antitrust scrutiny, companies would be advised to consult counsel at the earliest point possible when contemplating a reportable merger or consolidation under the antitrust regulations.